2002 PLP 2693 (YLR)

3. The appellant in reply took up the position that during the various periods confronted to them they had provided deep freezers to their stockists and retailers by spending huge amount of money so that the bottles of the aforesaid size were provided to the consumer in chilled form.

4. The Additional Collector (ADJ), however, did not agree and by way of her order in original dated 15‑12‑1999 she found the appellant to have been guilty of evasion of tax which directed to be paid immediately. Also penalties of various sums were imposed for various periods.

5. In first appeal on 25‑5‑2000 the learned First Appellate Authority/Collector (Appeals‑II) Lahore upheld the Order in original.

6. On further appeal a Division Bench of the learned Tribunal also refused to interfere with the impugned orders so far as these related to payment of excise duty adjudged against the appellant. However, the additional duty imposed on appellant was reduced to 25% of the amount payable under the law.

7. Through this further appeal under section 36‑C of the Central Excise Act, 1944, the appellant claims that following question of law have arisen out of the said order of the Tribunal dated 5‑7‑2001;‑ "(a) Whether in the facts and circumstances of the case, the Tribunal is right in not allowing deduction of chilling charges on 1000 ml and 1500 ml bottles, especially when there is a specific letter from the Central Board of Revenue allowing 5% deduction of chilling charges on packages above 250 ml which was never withdrawn or superceded by any subsequent letter. Even the letter of the Central Board of Revenue, relied upon by the Tribunal, clearly specify that 5% chilling charges would be allowed on packages above 250 ml? (b) Whether the learned Tribunal, without recording any evidence, is justified in holding that 1000 ml and 1500 ml bottles are not sold by retailers in a chilled state, especially when the learned Tribunal cannot take judicial notice of this fact as this would be out side the scope of Article 112 of Qanun‑a‑Shahadat Order, 1984, under which any Court or Tribunal can take judicial notice of any matter? (c) Whether in the facts and circumstances of the case, the Tribunal is right in holding that 1000 ml and 1500 ml bottles are generally sold in the market in an unchilled condition even though there is not an iota of evidence to support this findings on record? (d) Whether in the facts and circumstances of the case, and in view of the judgment of the Honourable Supreme Court' of Pakistan in the case "Collector of Central Excise v. Riaz Bottlers (Pvt.) Ltd." (2001 P.T.D. 1854), the Tribunal is right in holding that when clearing the 1000 ml and 1500 ml bottles in an unchilled condition Excise Duty on retail price inclusive or chilling charges? (e) Whether in the facts and circumstances of the case' the learned Tribunal rightly held that the appellant is not entitled to deduct chilling charges while fixing retail price, especially when the letter of Central Board of Revenue, disallowing deduction of chilling charges, has already been declared illegal and without lawful authority by the Honourable Supreme Court of Pakistan and Honourable Lahore High Court in the case tilted "Collector of Central Excise v. Riaz Bottlers (Pvt.) Ltd. "(2001 P.T.D. 1854)"?

8. Heard the learned counsel for the parties. Learned counsel for the appellant claims that the aforesaid questions of law arise out of the order of Tribunal and in support of his claim relies upon a reported judgment of the Honourable Supreme Court of Pakistan in re: Messrs Iram Ghee Mills v. Income Tax Appellate Tribunal (2000 SCMR 1871). In that judgment their Lordships cited with approval a judgment of the Supreme Court of India reported as re; Oriental Investment Co. Ltd. v. CIT Bombay (PLD 1958 SC Ind. 151), wherein various tests were provided to determine if the question was one of fact or law. The third test as propounded by their Lordships is particularly referred to which stated that a finding on a question of fact was open to attack under section 66(1) (of the late Income tax Act, 1922 as erroneous in law if there was no evidence to support it or if it was perverse.

9. Learned counsel for the Revenue on the other hand claims that none of the questions as framed can be described as a question of law which could be said to have arisen out of the order of the Tribunal.

10. We will agree. It hardly needs emphasis that under section 36‑C of the Central Excise Act, 1944 an appeal lies to this Court in respect of a question of law which arises out of an order recorded by the Tribunal under section 35-C of the Act. In the present case also the only issue that was agitated before the Revenue Authorities as well as the Tribunal was if the appellant was entitled to deduct 5% of consumer price in order to arrive at retail price for fixation of excise duty. In other words the issue remained if the petitioner had actually sold the said size of bottles in chilled form. After the service of the show cause notice though the appellant put up the defence that it had actually been supplying chilled bottles but no effort was made to support the defence. Since they were claiming concession and were actually availing the same it was obligatory for them to prove beyond doubt they were selling the bottles of the said size in chilled form. Obviously in order to avoid the proof of supply of bottles of the said size in chilled form it was rather stated that after the periods involved in the show cause notice that practice was discontinued. However, that reason did not absolve them of their liability to prove that fact. The situation would have been different if the Revenue had, before making the said deduction confronted the appellant with the fact that tire bottles were not being sold in chilled form. In that case the burden would have been on the Revenue to prove that it was not being done.

11. The fact that if the bottles of the said size were sold in chilled form, they were entitled to 5% concession is not at all disputed by the Revenue. Therefore, the question raising that issues as framed are not relevant at all. These questions Nos. A, D and C as framed to do not arise at all out of the order of the Tribunal.

12. If the appellants were selling bottles of the said sizes after chilling them is purely a question of fact. The burden or proof of which laid upon the appellant. Therefore, that controversy cannot be a subject‑matter of appeal before this Court under section 36‑C of the Act. Accordingly, as said above, the cases referred to by the learned counsel from the Indian Jurisdiction are relevant at all. A finding of a question of fact is certainly open to attack as erroneous in law if there is no evidence to support it or if it is perverse. In the present case however, since the burden of proof. Laid upon the appellant which it never discharged it cannot be said that the orders of Revenue Authorities as well as the Tribunal were without any evidence.

13. Looking the matter from another angle we find that the audit staff of the respondent/department rejected the accounts register maintained by the appellant on the ground of their having made wrong deduction. In such situation, no question of law can possibly be said to have arisen as found by this Court in re: Magna Industries Ltd. Gujranwala v. Commissioner of Income Tax Rawalpindi Zone, Rawalpindi (1980)41 Tax 148 (H.C. Lah).

14. It is noted that neither before the First Appellate Authority nor before the Tribunal an offer was ever made by the appellant to establish the fact that during the relevant periods it had actually sold bottles of the said sizes in chilled forms.

15. In re; C.I.T v. S.P Jain (1973) 87 LTR 370 the Indian Supreme Court observed that a question law could be said to arise and the High Courts and the Supreme Court will always have the jurisdiction to interfere if it appears that either the Tribunal had misunderstood the facts or their findings was inconsistent or was contradictory. There is nothing on record to hold that either the Tribunal had mis‑understood the facts nor it can be said that their order is inconsistent or contradictory. That being so no indulgence can possible be shown for appellant, as no question of law arises out of the order of the Tribunal.

16. Dismissed in limine.

17. This order will also dispose of C.A.Nos.326 to

331. Q.M.H./M.A.K./R‑100/L Appeal dismissed.